Director of Public Prosecutions v M. N.

[2019] VCC 1986

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

M. N. (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2019
DATE OF SENTENCE:	12 November 2019
CASE MAY BE CITED AS:	DPP v M. N.
MEDIUM NEUTRAL CITATION:	[2019] VCC 1986

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR A. MALIK	Office of Public Prosecutions
For the Accused	MS E. CONTINI	Victoria Legal Aid

HER HONOUR:

1M.N.[1], you have pleaded guilty before me to one charge of aggravated home invasion.  At the time of this offending, you were 16 years of age.  The offending took place on 17 November 2018.  On that date, you committed this offence with five other young men. 

[1] M. N. is a pseudonym.

2The circumstances of the offending were that you with the co-accused walked from Wyndham Vale Station and were seen at 5.39am on CCTV footage from the house next door to the property that you ultimately entered.  One of your co-accused, Mr G[2], remained in the driveway as a lookout while the rest of you forced your way into the garage of the property owned by Mr and Mrs Menzel, who are aged 80 and 56, who live with their 27-year-old daughter, Erica Menzel, who has Down Syndrome. 

[2] Mr G is a pseudonym.

3The property that you entered was their house at 17 Peppermint Crescent in Manor Lakes and all three of those people were asleep at the time you and the co-accused forced your way in the house.

4Inside the garage, the four of you took assorted tools, including garden shears and a sledgehammer.  One of the co-accused used that sledgehammer to smash the back door of the house and you and two others entered into the house.  Mrs Menzel was woken up by a loud bang and the sound of glass smashing and she got out of bed and went into the passageway of her home where she saw three people standing in the living area by the couch.  One of the co-accused was holding the sledgehammer, which Mrs Menzel said looked like the one that was kept in the garage, whilst another was holding what she thought was a machete, although no machete was recovered, however their garden shears were.

5She asked you what you wanted and one of you replied, 'Car key, car key, go inside the house so I don't kill you, car key quick' and one of the other people there opened the door to the spare room and told her to go in, which she did.  The young man with the sledgehammer followed Mrs Menzel into the doorway of the spare room and said to her, 'Quick, quick, quick, car key' and told her to stay in the room. 

6Mrs Menzel told you all that the key was outside and she went to the hallway cupboard where she kept it and handed the key to you all and the four of you then ran to the front door, unlocked it and went outside to the car in the driveway.  This was a white Toyota Corolla sedan.  You all got in the car and drove away.  Mrs Menzel then called police.

7Ultimately the car was seen at 5.55am being driven very fast in Sneydes Road, Point Cook and essentially police saw this car.  Then at 6.01am, CCTV footage from a house in La Rochelle Boulevard, Point Cook showed you and others walking past this address which was a house next door to where Mrs Menzel's car was found.

8Ultimately police attended a unit in La Rochelle Boulevard at 9am where an Airbnb party was being held and you and the four other boys were all at the Airbnb property. You however ran off.

9A search warrant was executed at your home in St Albans and you were arrested on 28 November 2018.  You made a no comment record of interview.  This matter resolved as a plea of guilty before committal mention on 15 February 2019; this was a plea of guilty at the earliest opportunity.

10I now turn to your personal circumstances.  You are one of seven children born to your parents and you were born in a refugee camp in Kenya where your mother had fled to from South Sudan.  Your family was originally from a South Sudanese village near Khartoum.  Your parents ultimately separated and your father remained in Sudan as a soldier in the South Sudanese Army. 

11Eventually your mother, you and three of your siblings gained refugee status and came to Australia when you were three, initially settling in Perth.  Your father died in 2016.  It appears you had little contact with him and you were lacking a father figure in your life from then on.

12Eventually, when you were in your early teens, your mother and two of your siblings moved to Mildura and then Melbourne after your older brother got into criminal trouble in Perth.  You settled in the western suburbs where you attended school, ultimately passing Year 10 at the Keilor Downs Secondary College.

13However, it is quite clear that it was difficult for you, as it is for many Sudanese young men who have ended up living in Australia, for you to settle into the community.  You mainly made friendships with other African youths, many of them South Sudanese.  When you were about 14 you began using cannabis, which became a daily habit.  Unfortunately you and many of your friends started offending, and from about 2017 your criminal record shows you were getting into serious trouble.

14Since 2017 you have been dealt with by the Children's Court for offences such as robbery and armed robbery.  It is most concerning that this is the third time you have been dealt with for home invasion type offending.

15In 2018 you were sentenced to a 13-month period of detention in a Youth Justice centre for home invasion and you also received a nine-month sentence for aggravated burglary, the circumstances of which were read to the court and which revealed very similar criminal behaviour and a fact scenario to the offending that has brought you here before the court today.

16Although you were only 16 when you committed these offences, parliament has enacted legislation whereby young men like yourself who engage in aggravated home invasion are not necessarily dealt with in the Children's Court.  You made application for this matter to be heard in the Children's Court but it was decided by the President of the Children's Court, Her Honour Judge Chambers, that this was not a matter which could be dealt with by the Children's Court, if I can put it that way, and so this matter was brought before the County Court.

17New provisions in the Sentencing Act direct the court that unless there are exceptional circumstances, persons charged with aggravated home invasion may not be placed in a Youth Justice centre.  In other words, unless there are exceptional circumstances, young men who would ordinarily be dealt with by the Children's Court are, because of the seriousness of this offending, instead dealt with by County Court, which is an adult court, and face the possibility, unless there are exceptional circumstances, of being ordered to serve a term of imprisonment in an adult prison. 

18It was conceded by the prosecution, however, that in your case exceptional circumstances do exist and I have decided that in all the circumstances, which I will refer to in a moment, it is appropriate that I place you in Youth Justice detention rather than adult prison.

19The offending that you engaged in was very violent and had a terrible impact on the persons in that house.  I received a victim impact statement from Joy Menzel.  She wrote that before this incident, she regarded her home as a haven, as a place of safety and peace.  She said that as a result of your offending, she finds that her house has turned from being a haven into a prison because she is so terrified by what occurred on that night.  She said when the crime occurred, she was frightened for her life, went into total shock and was completely confronted.

20She said that she had undergone a serious illness in 2015, as she had a very rare and very serious disease called Stevens-Johnson syndrome.  It had taken her a couple of years to recover from that illness and her home was incredibly important to her.  She said:

'My home has been a great healing place but now is like a prison'. 

21She said she was never able to drive her car again because she felt:

'… a great Evil had been in my car so I had to buy a new car'. 

22She said you and your co-offender left weapons, including an axe, in the passenger side.  She said afterwards she was unable to work in her job as a carer of the elderly.  She said:

'…I was feeling contaminated and violate, I was suffering from recurring nightmares and post-traumatic stress'.

23She said she became socially isolated, that is, she found it hard to deal with other people.  She said:

'I felt like a prisoner in my own home.  I have had to go to extensive counselling and I have had to take medication because I am plagued with recurring nightmares.  When I'm outside I'm in fear and I'm really suffering from trauma and anxiety'.

24She said:

'I have had to make my home a prison like structure with safety shutters, cameras and alarms'. 

25Now, I know that you were a teenager and you are a still teenager and that you were a young man when this offending occurred.  You were described by psychologist Warren Simmons, whose report dated July 2019, was tendered on the plea, as a fairly immature young man at the time who found it difficult to appreciate the effect his actions could have on other people.  That is a real worry for the court. 

26One of the things the court has to look at is whether a person is a danger to the community and one of the ways they go about deciding whether that person is a danger to the community is by looking at their prior convictions.  If a person has done the same dangerous thing over and over, then the court is going to think, well, this is a person who has not learned, who has been arrested by police, who has been placed in custody and then gets out and simply repeats that offending.  And a person who is not particularly mature often will take a long time to learn a lesson about how they need to behave in the community. 

27We had quite a discussion when this plea hearing was first held about the fact that at the age of 17 you now have a serious criminal history.  Do you know what I mean by that?  That you have got a serious record.  And that is something that you need to be very concerned about because should you appear before a court in the future, the court is going to have a record of your prior offending.  And whilst this is offending that has basically been committed by you between the ages of 14 and 16, it is still really serious and very frightening offending, which has had a terrible effect on other people in the community, whether you appreciated that or not at the time.

28Your prior criminal history, your criminal record is one of the measures that a court will always look at in deciding whether or not you are a person who is a danger to the community.  If a court decides a person is a danger to the community, then they are more likely to say therefore we have to put them in gaol or keep them in custody for a longer period of time simply to protect the community.

29Luckily in your case there are strong signs that you are now not the danger to the community that you were at the time you were arrested for these matters late in 2018.  When you were arrested you were placed in Youth Justice detention.  You started off at the Parkville Youth Justice Centre where unsurprisingly, given your background, the situation that you were in and the way you were leading your life, you obviously had a lot of trouble settling down.  There are a large number of reports of assaults taking place in which you were involved, either on other in-mates at the Youth Justice centre or occasionally on staff.  This went on for some time.

30You were then moved to Malmsbury and fortunately you have made what I regard as really remarkable process there.  You are now undertaking VCAL subjects.  For the first time you have started thinking about what you want to do with the future, your future.  That is a sign of maturity.  It is quite clear to me that before that, all you were thinking about is what you and your mates were going to do the next day that was a bit exciting, if I can put it that way; that you were going to do things which were criminal, where you were simply not thinking about the effects you were having on people and you were doing it over and over.

31It was quite clear from what you told Dr Cunningham that you have got a very good relationship with your mother.  You have always found her loving and supportive and she continues to support you and that is what is called a protective factor.  You have a family who cares about you and who you care about. 

32Most importantly, whilst it was Dr Cunningham's view that at the time that he interviewed you, you were fairly immature in the way you looked at your life, the way you behaved in the community, the way you felt about other people, the way you found it hard to appreciate how serious your offending was, has in my view changed. 

33I received some very positive reports on the plea hearing about your progress at Malmsbury and finally I received a pre-sentence report, an up to date report about your progress there and it is very reassuring and extremely positive.

34The report by Mr Willard and Mr Sims, which is dated 7 November 2019, said a number of things about you, beginning with a summary of the offending that you got involved in at the Parkville Youth Justice precinct.  The report notes that you were involved in a large number of incidents involving violence against other young people and staff.  What is interesting, in my view, is that 22 of the 27 incidents happened between 23 December 2018 and 18 May 2019, which occurred according to the report ‘… when Mr N was being moved between units and was quite unsettled’.

35Your counsel told me that once you were moved to a particular unit, that seemed to work for you (that being the Oakview unit).  The report states that your behaviour has been positive since that time.  The report goes on:

'He has received outstanding commendations from his teachers at Parkville College and is considered a leader amongst his peers, who he continually encourages to behave.  This is consistent with Mr N’s attitude that he likes to have structure and to be kept busy.  Mr N reflected that when he was being moved from unit to unit, he felt unsettled and as a result would act out'.

36You were transferred to the Malmsbury Youth Justice precinct on 10 September 2019.  You have been well behaved since your arrival there.  Again, you are described as a positive influence on your peers.  You have been encouraging them to attend classes.  There have not been any incidents at Malmsbury and you have maintained, as the report states:

'A gold Achievement Challenge Excellence “ACE” level since arriving at Malmsbury'.

The report continued:

'It should be noted that Mr N has been subject to intense lockdowns due to staffing shortages at MYJP.  During this time Mr N has been on his best behaviour and has not caused any incidents despite being confined to his room for long periods of the day'. 

37That is very much to your credit.  You are a leader of the Youth Leadership Council and ground maintenance team.  You also importantly told those who wrote the report that you were incredibly remorseful towards your victims.  You did not realise there was an elderly person, and a young disabled woman in the house, and you acknowledged that those people now feel unsafe in their home.  You said you felt particularly guilty because you yourself have a disabled sister.

38The report states:

'Mr N reported that he wouldn't consider doing that again and would act differently if he found himself in the same situation'.

39You are described as having taken full responsibility for your actions and you are not trying to say that other people made you do it.  This is very much to your credit and it also means the court can be much more hopeful about your future.  You have to understand, Mr N, that even though the prosecution conceded that there were exceptional circumstances in your case and that you could be dealt with by being placed in a Youth Justice centre, the court did not have to accept that.  The court could have thought, well, it is all very well that he has got exceptional circumstances, but this is the third time he has been involved in this sort of violent offending and the court think it is appropriate that he goes to adult gaol. 

40Because you have done so well, because you have settled so well, because your progress at Malmsbury and at Parkville has been so positive, I have decided that you should remain there and that I should deal with you by a term of detention in Youth Justice rather than sending you to adult gaol.  Do you understand that?

41OFFENDER:  Yes, Your Honour.

42HER HONOUR:  And do you understand that you created that for yourself?

43OFFENDER:  Yep.

44HER HONOUR:  All right.  Also worth noting in the report is that you have received – and I quote –

'Numerous glowing recommendations from his teachers, which have been provided for the court's perusal'. 

45You particularly enjoy sport, you excel in basketball, soccer, football and rugby.  You are doing plenty of that whilst you are in custody. 

46The report also stated:

'Mr N has previously lacked empathy'.

47Do you understand what empathy means?

48OFFENDER:  Explain to me, please.

49HER HONOUR:  What it means is that you have an understanding of other people, that you understand that if you do something to them frightening, it is going to have an effect upon them.  That is what empathy means, an understanding of other people's emotional reactions.  You are described as in the past not having that but that you have developed this.  It notes that you have in the past not taken any notice of the orders that the Children's Court have placed, which were designed to give you support in the community with the help of Youth Justice. 

50It says that you appear to have:

'Matured and has taken full responsibility for his current offending.  Mr n reports to understand the effects of his behaviour and shows empathy on the victim'.

51You have talked about wanting to participate in rehabilitation and education programs and it is also the opinion of the authors of the report that sending you to gaol would very much get in the way of the progress you have made, and perhaps reverse it. 

52You are prepared to undertake the Adolescent Violence Intervention Program, in fact you began that in August and that is important.  You have undertaken a psychosocial program on remand.  You are involved in plenty of education, plenty of sport, you have got a good structure, you are responding well to that. 

53In addition, a transition plan has been formulated for when you are released back into the community, which I am satisfied is one where you will be well supported once you are released back into the community by Youth Justice in what could be called a sort of parole situation.  That is, you will have served a period of time in custody at Youth Justice but will then be released into the community with some of that detention time hanging over your head.  In other words, you will know when you are released into the community, that for a period of time you will be supported by Youth Justice but it will be a period of time where you will be in some danger of being returned back because you will effectively owe some time.  Does that make sense to you?

54OFFENDER:  Yeah.

55HER HONOUR:  All right.  I am satisfied that your progress in Youth Justice, the education you have undertaken, the personal transformation you have taken, are such that I can regard your prospects of rehabilitation as being reasonably positive.

56In all those circumstances, as I have said, I am prepared to sentence you to a term of detention in Youth Justice. 

57The special situation that the government and parliament have decided must exist where people engage in aggravated home invasion has also meant that where a court is dealing with this charge, the maximum penalty for such a charge, which would normally, when you are dealing with Youth Justice, be three years, is increased to four years. 

58Unfortunately, because of your serious criminal history I have decided that I should deal with you by the maximum penalty of four years.  However, I am aware that unlike adult prison, where the court sets out what is called a head term, that is the maximum term that a person will serve in prison and a minimum term, which is the shorter term that a person must serve before becoming eligible for parole, there is a different system in the way the court expresses as to what happens in Youth Justice.  I know that within that four-year term, there will be arrangements made for you to be released into the community before that four-year term expires, on a sort of parole system.  I am aware that the four years will not necessarily mean that you will serve four years.

59It is my view that the four years is appropriate because of your previous offending.  It is also my view that you require the structure that Youth Justice is now providing for you and you require a long period of time of involvement by Youth Justice, whether you are in the community or not. 

60Now, Mr N, I spoke to you last time about this.  Can you stand up, please, sir?  I hope I have made it clear that I am really impressed with the progress that you have made, all right.  I want to impress on you again what I said to you on the last occasion.  You are clearly a young man of ability, both academically and sporting wise.  You have got a lot going for you, all right.  It is really important you understand how serious your priors; your criminal prior history is because of what it can do to your future. 

61You have now reached the stage where it is likely, if you get into trouble again, you will always come back before an adult court.  All right.  And an adult court is a very different court to the Children's Court and it is often very difficult for young people to appreciate that.  In the Children's Court, all the emphasis is on rehabilitation and keeping the young person out of custody, all right.  Adult courts take into account the fact that a person is a young person and that it is really desirable to keep them out of custody, if that can be achieved.  But rehabilitation is not as major or as big a factor in sentencing in adult courts as it is in the Children's Court.  I know I keep repeating myself.  Because of your priors, an adult court is going to deal with you a lot more harshly. 

62I am not trying to threaten you at all, Mr N, I am just trying to make you really understand how careful you have to look after yourself in the next few years.  Am I making sense to you?

63OFFENDER:  Yeah.

64HER HONOUR:  Can you say back to me what I said to you?

65OFFENDER:  You're telling me to take consideration about my priors and what I've done wrong (indistinct) affect me in future time.

66HER HONOUR:  Exactly.  Yes, all right.  So you are just at risk.  You are really at risk of ending up in adult gaol, which I think would be a tragedy.  You are clearly a young man of considerable ability.  You are an intelligent young man and you are a good all-rounder.  There is a great deal you could do with your life.  And I think a term of imprisonment would be disastrous for you.  All right.  And such a waste of all the ability that you have got.  All right. 

67So I am sentencing you to be detained in a Youth Justice centre for four years.  What is the PSD, please?

68MR MALIK:  349 days, not including today.

69HER HONOUR:  I declare that 350 days of that sentence, detention, have already been served by way of pre-sentence detention.  What that means is I am saying that you have already served 350 days.  All right.  So I am taking into account the period of time that you have been in prison.  All right. 

70Do I have to do a s.6AAA with a detention?

71MR MALIK:  Not sure, Your Honour.  Maybe just to be safe.

72HER HONOUR:  I will just do it.  All right.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment in adult custody for a period of four years and order that you serve a minimum term of two years.  All right.  Is there anything you want to ask me before I finish, Mr N? 

73OFFENDER:  No.

74HER HONOUR:  You are all right?  Yes, I just I wish you all the best, Mr N.  All right.  As I said, you have really settled down, you are a bright young man, you have got a great future if you want it and I really hope you achieve it.  All right.  Thank you very much.

75MR MALIK:  As Your Honour pleases.

76MS CONTINI:  As the court pleases.

77HER HONOUR:  Anything else I need to do?

78COUNSEL:  No, Your Honour.

79HER HONOUR:  All right.  We are done.  Thanks, Mr N. 

80MR MALIK:  Your Honour, might I be excused?

81MS CONTINI:  Can I be excused as well?

82HER HONOUR:  Yes, you are excused.  Thank you very much.

83MS CONTINI:  Thank you.

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